1 'EnDRAr, COURTs--<FoRlIIS O:l" SUIT-REOOVERY 011' UNOOOUPIED LANDS-BILL IN
in a federal court uiider Gen. St. Minn. 1878, o. 75, § 2, p. 814, to an adverse ola!m to,ul1oooupied lands, should be by bill in equity, and tlie,pleadlngs and practice should conform as nearly as may be to the pleadings atid practioein equity in the fedllraloourts· A suit
..

ltQuhy.

will t,ake'jydiQial notioe of the fact that patents for publio lands are frequ!lntly dated several years after the payment of the purchase money and the islIiuanoeof the cel'tificate of entry, lind therefore the production of a patent dated in 1,llll8ls no proof that the patentee did not have an interest in the lands which wauubject to attachment judicial sale in 1885.
ATTAOBlIIENT-PROOII'

OIl'PUBLIO LANDS.

8.

Under the Minnesotailtatute requiring that the summons in attachment shall be publishlld w!'ekfor six oonsllcutive weeks, " a proof of publication is ilefectlve when it merely states that the pUblication was made" for the period of seven 'successive weekS." Godfrey v. Valentine, 40 N. W. Rep. 163, 39 Minn. 1137,
1

PUBLICATION,.,..DEII'ECTS.

'"

Und'er Gen. St. 'Minn.. 1878, c. 66, §§ 124, 125, a judge has authority, after the expiration of the term at Which final judgment was entered, to make an order nunc proCunc,allowing a to correct a defect in the proof of publication of summons in '"tt,achl:llent, by filing au a.ftIdavit showing the facts as to the publication. ownElr purchaser at the attachment sale, for that transfer takes place at the date of the sheriff's deed,and the corl'ection of the proof of pUblication merely preserv6s.the evidence 'of that fact.

011' PUlICTS AII'TERTERlII.

G.S..

:8u<lh C!lrrection does not operate to transfer the titlet.Q the land from the original

OF' COIlRECTION.

6. SA.1IIB....-fUIUSDIOTION......COt.LA.TERAL ATTAClli. TbeaIllen(j.edproof of publication in such case shows that the court had jurisdiction 0.1 the attachment proceeding, and hence its judgment is not open to collateral attlloCk,:snd.mere irregUlarities or errors in its proceedings are immaterial.

'T.

SAME..,.4,lI'"II)A.VIT.

In ¥tinD.l!l\Qta. it is not necE;lssarythat an aftldavitfor attachment sbould state that defendaIit'hll,s'property in the state subject to attachment, and fully describe the same. Kenney v. Goergen. 31 N. W. Rep. 210, 36 Minn. 190, followed.SUE. , ..

8.

"(Tp(j.el'Gen. St. Minn. 1878, c. 66, § 318, the failure of the sheriff to give the req:: rlotiOEl of sale of lands on att Bcbment does not affect the validity of tbe sale , eithElJ: '68'. t4 third persons or parties to the action. 9. p Lee L: B gelovV sigpEl1! all,ote by his initials, "L. L. Bigelow." Suit was brought , thereon against him' asL. L: Biglow"and his lands were sold in attachment pro. oeedings, after summons. Held, that the use of the initials and the difference in the spelling' were mere irregularities, which did not. affect the jurisdiction of the CGu,r1l;aod'the sale was not open to collateral attack.

a

615
Appeal from theCitcuit COurt the Unitoo States for the District of Minnesota. '' , " , , " " ' , In Eq\lity.,' suit by ,Lee :mgi»o:w :a.¢ainstJease' Chatterton to detennine anadyerse, claim ,to land." Decree for, defendant. }>lainti/f brings error. Affirmed., appllItls,. and Statement by CALDWELL, Circuit Judge: A 'statute of the state or Minnesota reads as folloWS:

'If.

n.

Claimll.;' An action may by himself or his tenant, of any person who claims an estate or interest thereio, 0,", lien upon the same, adverse to him. fpr tile purpose of determiningsnch adV,ersec1aim, estate; lien, or interest; and any persoil having or claiming title to vacant or 'tinoccupied real estate may against claiming an estate or interest therein adverse to him', for the purpose of such adverse claho, and the rights of the parties, respectively." ',St. Minn. 1878, c. 75. § 2, p. 814. '

by any perSC)n, in

This suit was brought in the circuit court of theUDited States for the district of Minnesota by the appellant, Lee L. 'Bigelow, under the last clause of the section of the statute above quoted, against the appellee, Jesse B. Chatterton, to deterniine the adverse claim of the latter to an undivided one haIfof theva9ant and unoccupied town lots in the bill, situated iIi 'the first aod second divisions of Grand Rapids, in the county of Itasca, Minn. The court below decreed that the appellantwas not, and that the appellee was, the. owner of property, and ' the complainant appealed. Walter H. SanbO'rli and W. a. Goforth, for appellant. E. C. Chatfield, for appellee. Before CALDWELL, and SHIRAS, District Judge.

the

CALDWELL, Circuit Judge, (after 8tating the fact8.) The case is here both by writ of error and on appeal, thliJ plaintiff being in doubt whether this court would treat the proceeding as an action at law or a suit in equity. Whatever may be the practice in the state courts, where the distinction between equity, if not abolished, is not observed with any strictness, it would seem that in the courts of the United States, where that distinction is strictly maintained, a bill in equity would be the most appropriate form of proceeding when, as in this case, the land is 'ylj.cant and nnoccupied. Several cases founded on state statutes of the same general tenor as the Minnesota statute have been before the supreme court. The case of Holland v. Ohallen, 110 U. S. 15,3 Sup. Ct. Rep. 495, was founded on a statute of Nebraska, and was begun by bill in equity. In that case the court said: ' "There can, be no controversy at law respecting the. 'title to. or right ot
possession of, real property. ,when neither of the parties is in possession. , An action at law, Whether in the ancient form of ejectment or in the form llOW eommonly used. will lie only against a party in possession. ShOUld suit be brought in the federal court. under the Nebraska statute,agatnsta party in pos8eesion, there would be force in the objectiun that a legal controversy was withdrawn from a court of la,w; but that is oot this case_ neit,ber ia itof,sucb

616

vol. 51.

speaking. Undoubtedly, as a for the relief sought, the plaintift' must show that he has a legal title to the premises, and, genwillbe exhibited Or instruments of record, and effect of which \\iillproperly rest with the court. Such. the also, will genet'ally be the case with the'SdvElrse estates or interests claimed by others. This was the character of the proofS establishing the title of the complainant in Cla7'k v. Smith, i1ifra. But should proofs of a different character be produoe4. t,b.e controversy would still be one upon which a court of law could not act. It is not an objection to the jurisdiction of equity that legal questions ai-\'! presented for consideration which might also arise in a court of law. If'the controversy be one in which a court of equity only can afford the relief prayed for, its jurisdiction is unaffected by the character of the questiqhs ibvolved." Page 25, 110 U. S., and page 501, 3 Sup. Ct. Rep. And see ,RWn6ldS v. Bank, 112 U. S.405, 5 Sq.p. Ct. Rep. 213; Chap'm.an. v. Brewer; 114, U. S. 158, 5 Sup. Ct. Rep. 799; U. S. v. Wilson, 118 U. S. 86, 6 Sup. Ot. Rep. 991; Frost v. Spitley, 121 U. S. 552, 7 Sup. Ct, Rep. 1129; Whitehead v. Shattuck, 138 U. S. 146, 11 Sup. Ct. Olark v. Smith, 13 Pet. 19.5; Hurt v. HoUingworth, 100 U. S.100, These cases 'were mostly founded on state statutes, and were all commenced by bill in equity; and there are expressions in the opinions in most of them indicating that the appropriate mode of proceeding in such cases in the (lourts of the United States, when the land is unoccupied, is by bill in equity. Of .course, if the defendant is in possession of the property; the plaintiff has an adequate remedy at law, imd cannot resort to equity, although the statute confers equitable jurisdiction on the. state courts in such a case. rd. And as a bill in equity is the proper mode of proceeding under this statute, in the federal courts, the pleadings and practice in such cases should bonform, as nearly as may be, to the pleadings and practice in equity suits in those courts. No objection was taken below, and none is made in this court, to the form of the action or the pleadings hi the case. It was tried before the '-court below upon a stipulation which waived a jury. If it was an equity case, then it was properly before the court. If it was a case at law, a jury having been, waived, it was also properly there. The record contains all the evidence, and the case will he treated as a suit in equity, and heard on the appeal, though the result would be the Same if we treated it as anactionatlaw. " The onlvevidence introduced on behalf of the complainant was a the United States of America, to himself, for "the north half ofthe northwest quarter, the northwest quarter of the northeast quarter, Of section twenty-one, and the northeast quarter of the northeast quarter of section twenty, in township fifty-five north, of range west, oithe fourth principal meridian, in Minnesota, containing one hundred lj.nd sixty acresl" dated October 11, 1888. Whatrelation this p8.tent has to the town lots in Grand ;Rapids described in the bill is not 'fery clear, bllt as both parties tried the case below on the assumption that the lands described in the patent introduced by the appellant, and in the deeds iritr6duced by the appellee, were the lands in controversy,

BIGELOW tI. CHATTERTON.

617

we may reasonably infer that the town of Grand Rapids is laid out in whole or in part on these lands. The appellee's evidence consists of a warranty deed from the appellant to him, dated the 19th day of September, 1883, for "an undivided one half" of the lands described in the patent introduced by the appellant,and a sheriff's deed to the appellee for an undivided half of the same land, dated the 13th day of July, 1885, and based on proceedings and a judgment in a suit begun by attachment on the 30th day of March, 1885, by the appellee against the appellant, in the district court of Aitkin county, Mirm. The first contention of the appellant is that, as the patent from the United States to him is dated in 1888, and the sale under the proceedingsin the attachment suit was made in 1885, the complainant had at the latter date no title or interest'in the land subject to sale on execution, and the appellee, therefore, acquired no title by his purchase and sheriff's deed .. This contention rests on the assumption that the patent proves that the appellant had no interest in the land subject to sale on execution before the date of the patent. This is not a sound position.. The appellant acquired an eqUitable title to the land-which was subject to sale on execution-when he paid the entrance money, and received of entry from the proper land officer. The CQurt will take judicial notice of the manner in which the public lands are sold by private entry, and knows, therefore, that the issue of the tificate of entry and the patent are not the same or simultaneous acts, It is very well known that several years may, and usually do, elapse between the date of the entry and the issuance of the patent, when no special effort is made to hasten its issue. The appellant presumably has the certificate of entry in his possession. He is its only custodian. That certificate was the best evidence of the dute of the en" try. The patent conveyed the fee, but was no evidence of the date of the entry. It only shows that the appellant purchased and paid for the lands some time prior to its date. It may have been one or ten years prior. It did not prove that the entry was not made before the sheriff's sale. Moreover, it appears the appellant in 1883 made a warranty deed to an undivided half of these lands to the appellee. This he could not rightfully do unless he had then entered the whole of the lands. If he had no interest in the lands at that time, he was guilty of a fraud in making that, deed. In that deed he asserts in terms that "he is well seised in fee of the lands, * * * and has good right to sell and convey the same." This is a solemn written declaration that he owned an undivided half of the lands at the date of this deed. As he could not own an undivided half unless he had entered the whole,-for the United States. never sells an undivided half interest in ller public lands subject to private entry,-it is an admission that he had entered the whole. Objection was made to the introduction of the record in the attachment suit upon grounds, but principally upon the ground that the affidavit to prove publication of the summons was defective in this:

FEPERAL;R,E;J?QRT.ER, . · ..', .C ' .. I . ' , ,

, , . "

vol.J.'.51.

i

week stated proof

it!J;l.qer

shall be in each "and the proof p.llblicittiqn' first filed the period.qfse'Vlfn sllccessive supreme court, of Minnesota this

of

1&3.

..'

'Godfrey

'j , " ' . ' "

40 N. W.

,

After:Wa,rqs ,the plaintitr's attornllY filed a petition luwriting, under ()Rtb,Jmfore the judge, of the dil'trict, setting forth the defect in the first affidavit did not state that it was affida\'it, and statillg thlJ.t, while 'once in eaop,week,' in fact said summons was published once in el}chweek for, the said seven weeks, and tha,t the defendsold, on the execution upon said judgment."i!' Upon filing,tijis: ,petitioll judge made the following order: "t1pohreading the Rnd on motion of D.E. Secombe. atfor the plaintiff'ittt:he foregoing entitled action, it is hereby ordered tIlatosaid:'plaintlff behereliy allowed to lile In the said action a proper and atlidavlt of summons nune pro t'unc, which shall of the jl,ldgwent roll in sai,d action. , ],' ; , " G . W. HOLLAND; District JUdge." Tbere1;lpqn an affidaNit of proof of the pu blication of thll summons was filed, which coMm-med in all, respecta to the requirements of the statuW.: "Objection is mllde to the admission and consideration of this last prdOfof publicfitiotl. On tHe 22d day of July, 1885, the execution in 'the,attachment suin\'as returned satisfied by the sale of the attached lands. . Appellant insists that the expiration of the term, and the satisthe suit, and that after that the disfaction Of the trict court had no poWer or jurisdiction to make any order in the case, or permit proof of pUblication to be filed. It is undoubtedly the rule in the federal courts, and 'in many of the states, that, after the term has ended, all final judgments and decrees of the c()urt pass beyond its control urill?sS steps be takenauring the term, by motioll or otherwise, to set aside, modify, or cdt-rect them. Bronson v. Schulten, 104 U. S. 410417. But this rule is not uniform. In some states, and notably in Minnesota, it bas 'been abrogated onary lUuch expanded. The General Statutes of M,:innesota provide:
"Sec.124· ThecOllft may, before or after judgment, lDfurthel'imce,of justice ;md on such terins as may be proper. amend any pleading. process. or proceeding, by add'ingor fltriking out the name of any party, or by conecting a mistake in the name of a party, a mistake in any otherrespect,6r by-inserting other allegations material to the case. or, when tbeamendment does not change the claim or defense, by conforming the pleading or proceeding to the fact proved. ; '$ec. 125. Tlme - Relie,f against Mistakes - Opening Ju,dgme-nts, lite. The. cOl,lrt may likewise. in its dis!ll'etlon, allow an answer or'reply to be 'made or 'other act to be done, after the time limited by this chapter, or by, an order enlarge such time; and may also, in its discretion, at ally time Within 'olle'year after Iloti'ce thereof, relieve a party from a judgment,order. or other proceeding taken against him through his mistake, inor excusable ,neglectj and tbe court may. as well in

BIGELOW V. CHATTERTON.

619

varation and out of term as in term,and withOnt regard to whether sl1ch judgment or order was made and entered, or procl.'edings had, in or out of term, upon good cause shown, set aside or modify its jndgmf'nts, orders, or proceedings, although the same were made or entered by the court, or under or by virtue of its authority, order, or direction, and may supply any omission in any proceeding. And, whenever any proceeding taken by a party fails to conform to the statute, the court may permit an amendment to such procl.'eding, so as to make it conformahle then-to; but this section does not apply to a final judgmpnt in an action for divorce." Gen. st. Minn. 11)78, c. 66, §§ 124. 125, pp. 724. 725.

Construing this statute, the supreme court of Minnesota has decided that motions, though in terms made before the jurlge, must be held to have been addressed to the court. John8ton v. Higgins, 15 Minn. 486, (Gil. 400.) The authority of the judge at chambers, under the statute, is the authority of the court itself. And, upon this very question of filing proof of publication after the expiration ofthe term, the court in Burr v. Seymuur, 43 Minn. 401, 45 N. W. Rep. 715, said:
"This action was commenced against 8 nonresident defendant by publication of the summons, and judgment was entered against bim by default. Tbe affidavit of pUblication of the summons Iiled with the clerk for entry of jUdgment did not show 8 sufficient publication. Defl'ndant, 81,pearing specially for thllt pUt'pose, moved to set aside the judgment on that ground. The plaintiff at the same time movt'd for leavt' to file, nuncp1'otunfJ, a proper and sutlicit'nt affidavit of publication. The motions wpre heard at the same time, antI by the same ol'ller the first motion was gnmted and the second denied. * * * The question is, then, wus the plaintiff entitled, under the facts appearing, to have the record corrected so as to shuw the fact as it actually was? We think he WIIS. Thejuristliclion of the court was acquired by the fact of service, and not from the proof of it filed. Kipp v. Fullerton, 4 Minn. 473, (Gil. 366;) v. Morrison,22 Minn. 178. So that, as soon as the summons was duly puulished, the jurisdi"tion over the cause was complete, though no affidavit of publication had bt'en made. And we may say here that, were this jUdgment St't aside, the plaintiff could at once file proper proof of publication, and, as the time for defendant to answer had expired, the same jUdgment might be entered. The plaintiff was in the same position when the was entered. He was en· titlt'd to the judgment. By rpason of the or inad vertence ill the matter of the affidavit of publication fileLl, he f.. iled to secure a judgment valid upon the rl'l'ord, but wllich would be valid it' the fact as it was in respect to the publitatioll had been made to appear in the record. The power of the court to aml'nd the record in sUth 1\ case canQot be doubled, Gen. St. Minn. 1l:l7l:l, c. 66, §§ 124, 125. It is a pow!'r given to be exercised in the furtherance of }uslite. Of course, if, sint'e the entry of such a jllllgment, circumshlll/'es have arisen that would make it unjust to the defendant, or if l'ights of third parties have intervellt'd so that the amendment might operate as fraud upon them, it ought n"t to be allowed. A party ought not to be relieved, at threxpense of others, from the cOllsequ!'ntes of bis own mistake or inadvertence. If anyone must Buffer from it, he, i\llli not other illnoCt'nt persons, should be the sufferer. But where, as in this case, there is only the bare f"ct that, in a cause of which the court had complete jurisdiction, the party has .failed. through mistake, to secure what he was of right elltitled to, we think that the statute ill tends that the omission or mistake shall be corrected·. ,If not a matter of strict right in such a case, sound discretion should grant the relief."

620

FEDERAL REPORTER, vol. 51.

, And see Kipp v. Fullerton,4 Minn. 473, (Gil. 366;) Comm'iMioners v. Morrison, 22. Minn. 178; Golcher, v. Brisbin, 20 Minn. 453, (Gil. 407 j) Higgins, 15 Minn. 486, (Gil. 400.) It is apparent, upon examination of the statutes of Minnesota, and of the supreme court of that state, that the judge of the Q.istrict court had authority to make the order authorizing a proper proof of publication to be filed in the case nunc pro tunc, and that, when such proof was filed, it became a part of the files of the case, and proved the jurisdiction of the court in the cause as effectually as i.f ithad been filed at the term and before the judgment was entered. Filing this proof of publication did not confer the jurisdiction; it only proved. the fact of its existence. The doctrine of the Minnesota court istha(thejurisdiction of the court' is acquired by the due publication and not from, or by, the filing of the proof of its pubIf the summons is in fact published as requ'ir,ed by the statute, the court has to proceed with the cause. .The proof of its, pubFqationl1:\ay. b,e filed at the return term, or, by leave of the term, unless circumstances have arisen that woqlQ;ffiake itunJVI'.t' thl" or to innocent third parties. t,heamendedproof of publication, as argued by appellant's <;:ounsel, have the.,effect to transfer the title to the land from the appellant to the appeUee'.That had already been done,and the perfEicted "proOf of publiciati6nwas filed to preserve the evidence of that fact, l:tlJ,(i. one of themimiments of 'the appellee's. title. When a legislative curing a defectively acknowledged deed, the title to the; is not thereby transferred from the grantor to the grantee in the'deed. That was done when:'the deed was made, and the curatiV'eJaet merely removes an impediment to the proof of that fact, or, rather"supplies proof of that fact, by converting the defective acknowlvalid one. , The .Jactil3 established by this amended proof of pUhlication that the cqurt had jurisdiction in the attachment suit. That being so, its judgment is not open to collateralattack, however erroneous it may be. lt is unneceSsary, therefore.. to inqnire whether there are any mere irregulatfties or errors in the proceedings for which a court exercising appellate jurisdiction would reverse thejudgment. .Itis the .settled doctrine ofthe court ofthe United States that an attachmllnt suit against an absconding or nonresident debtor, who does not Rppeat;to the action,,....,..which is the case disclosed by the record, put in evidence by the a proceeding in rem, in which the levy 0", the. on ,the. pr9pefty is essential to the of and that when the wrIt has been Issued, the property and sold, the jurisdiction of the court over the seized.,: propfilrt,y ,iapat, affected by the fact ,that there was an, insufficient or notice to the defendant·. Cooper v. Reynolds, 10 Wall. 308.. tri lthat case, Mr· .Justice MILLER, who delivered' the opinion of tM'h6urt,says" t6 hold. aQY other doctrine· would be '(to overtnrn the· uniform course of decision in this court, to unsettle titles to vasl

BIGELOW 11. CHA.TTERTON.

621

amounts of ,property long held in reliance' on those decisions, and in our judgment would be to sacrifice sound principle to barren technicalities. * * *" It is believed the doctrine of the supreme court ofthe United States on this question is generally approved by the state courts. In Freeman v. Thompson. 53 Mo. 183, 198, Judge SHERWOOD, after discussing the question and citing authorities to support the view maintained in Cooperv. Reynolds, supra, says: "And I very much doubt whether a single well-considered case can be found in opposition thereto." Kane v. McCown, 55 Mo. 181; Johnson v. Gage, 57 Mo. Paine v. Mooreland, 15 Ohio, 435. It is not necessary to the decision of this case to determine what the doctrine of the supreme court of Minnesota is on this subject. In the case of Ken'lley v. Goergen, 36 Minn. 190,31 N. W. Rep. 210, Judge MITCHELL, who delivered the opinion of the court, said: "The proceedings, [by attachment against a nonresident debtor,] although in form in peTsonam, are in effect in Tern, and it is only by attaching the property that the court acquires jurisdiction, and then only to the extent of the property attached. " In support of this proposition, the .learned judge cites, among other authorities, with apparent approval, Oooper v. Reynolds, supra; but it is not clear that the court meant to adopt the doctrine of that case in all its breadth. In the attachinent suit we are considering, the property was seized on the writ of attachment, and there was due publication of the summOns to the defendant also,so that the court hud jurisdiction over the attached property under either rule. It is further contended that it was essential to the exercise of any jurisdiction by the court that the affidavit for attachment should state that the defendant had property in the state subject to attachment, and fully describe the same. But this is not the law in Minnesota. Ken· ney v. Goergen, 36 Minn. 190,31 N. W. Rep. 210. Another objection is that the requisite notice of the sale on execution ofthe attached property was not given by the sheriff. The statute (Gen. St. Minn. 1878, c. 66, § 318) expressly provides that the failure of the sheriff to give the required notice of the sale of lands on execution shall not affect the validity oLthe sale, ." either as to third persons or parties to the action." It is further objected that the proceeding of the attachment against L. L. Biglow gave· the court no jurisdiction to enter judgment and sell the lands of Lee L. Bigelow, when there was no appearance to the action. The: bill was filed in the name of Lee L. Bigelow, but there is no allegation or proof that that is his name, nor is it alleged that the attachment suit in the state court was not brought against him by his proper name. The cause of action in the attachment suit was a note signed" L. L. Bigelow," and the appellee proved that the appellant made and signed that 11ote, and that he was the person sued in that action. Having signed the note by his initials, he cannot, at this day, complain that he was sued on that note by those initials. But if it was to sue him by his initials. it was a matter in abatement at the most, and did not affect the jurisdiction of the court. The slight

6J21

nDERAL IUllP.0RTER;Vol

51.

ditTerence of: the"8Utname.is not worthyof,seril)JlS ,CQnsideratiOnftamwouldnot be if··the· appellant had proved which ing he prefoorred. The learned counsel for the appellan:t'citedtheSt. Paul City Directory in support: of the contention that 'i' is of the appellant's llame, and that the proper spelling it is a trom "Biglow,," Ona question of spelling and pronuncil1tion, we think Professor· Lowell and Webster's Dictionary are safer guides than the City Directory of St. Paul. Prof. Lowell spells the name "Biglow," (The Biglow Papers,) and when it is spelled with an.Pe·" that letter is obscure or mute, (Webst. Itis the same name irilaw, whether spelled with or without the "e," and, if the appellantdid not know this when he read the pUblished summons, it was because he did not know his own name when he saw it. The decree of the ciruuit court is affirmed.

Where a c:ity takes posS(j.sionOf private lands, and constructs a stl'6et and stree' railway thereon, in the absence of the owner and without her kno,wledg'e, consent, or acquiescence, she can thereafter maintaili ail action for the recovery thereof, notwithstanping the publipuse.
;

.

'

4tLaw. Action byJ,.iUian I. Green against the city of Tacoma and possession ofland as a street. Demurrer to others complaint overruled .. J. C.StailrY¥p, for plajlltiff. F.ll. Murrwy, City Atty., nnd Crowley &;0 Sullimn, for defendants. District Judge. In her original complaint the plaintiff claimed ditlllltges·equal totbe value ofa strip orland situated in the city of Tacoma, which \vithout her consent the city has.attemptAd to devote to publicnse.as a ,street., Uponthe authority ofthedecision of the supreme court ,of .this state. in Oity oj TClcoma v. State, 29 Pilc. Rep. 847, this court, held. that the attempt of the city to IIp.propriatetbe saitlland was without legal authority, that the plaintiff had not been divestetl of her title,. andi·th:erefore.she could not eXllct com pensationas if she had . been 'deprh'ed ,oLsaid :prClperty; arid on that ground ,sustained a demur:rer iThe plaintiff then filed an amended complaint setting upiher.title·to.theland as owner in lee, and alleging ouster and wrongtulwithholding ,ofpossession i by,thecity, and praying (or a judg.. manV thatslie rec()verthe sll.idpren:l'ises, and for damages, including loss ,of rents and profits,' and compensatitm tor injttriesdone by grading the street and constructing: a jstreetrailway therein, whiuh acts oftrespa:as